Savabula v The State [2002] FJHC 103; HAA0012J.2002S (12 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0012 OF 2002S

Between:

PENIJAMINI SAVABULA
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in Person
Mr N. Nand for Respondent

Hearing: 5th April 2002
Judgment: 12th April 2002

JUDGMENT

The Appellant was convicted, on his plea of guilty, in the Suva Magistrates= Court on 8^th November 2001 of the following offence:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.

Particulars of Offence

PENIJAMINI SAVABULA, SEREVI QIOSESE and another, on the 8^th day of October, 1999 at Manu bridge Wainibuka in the Central Division, assaulted and robbed SANIL DUTT s/o UMA DUTT of cash $202.00 and 53 loaves of bread at $27.00 to the total value of $229.00 and immediately before the time of such robbery did use personal violence to the said SANIL DUTT s/o UMA DUTT.

He was sentenced to 12 months imprisonment, to be served consecutively with a total term of 22 years= imprisonment then being served, also for convictions of Robbery with Violence. The Appellant appeals against his sentence.

The grounds of his appeal are that he is remorseful, that he had pleaded guilty and saved the court=s time, that the offence was Acoup-related@ that those who had instigated the offence had never helped him or his family while he was in prison, and that he should have been given a concurrent sentence. In court, the Appellant, in written submissions, expressed regret for what he did, and asked for leniency.

The State opposes the appeal, saying that the sentence is in fact lenient, given the established tariff for offences of Robbery with Violence, and that the facts of the case called for a custodial sentence. Counsel further said that the consecutive sentence was correct in principle, because the offence was a distinct and separate offence which called for a consecutive sentence, and because the totality principle was not offended.

The facts of the case, which were outlined by the prosecution in the Magistrates= Court, were that one Sanil Dutt, an employee of Super Quality Bakery was driving a bread delivery van to Rakiraki, when he was stopped by a road block at the Manu Bridge Wainibuka. The road block was made by stones and timber being placed across the bridge. Mr Dutt stopped the van to clear the bridge when the Appellant came with a cane knife, placed it on Mr Dutt=s neck and demanded money. He had an accomplice, one Serevi Qiosese, who stole 53 loaves of bread to the total value of $229.00. The Appellant took $202.00 in cash from Mr Dutt. The Appellant and Serevi Qiosese were subsequently arrested and charged. No money was recovered.

In mitigation the Appellant told the Magistrate that he was 26 years old, and serving a prison term for Robbery with Violence. In his sentencing remarks, the learned Magistrate adopted the remarks made by his brother Magistrate in sentencing Serevi Qiosese, and passed the same sentence of 12 months imprisonment. Serevi Qiosese was a first offender.

The accepted tariff for Robbery with Violence offences, where weapons other than firearms are used is between four to seven years in Fiji (Joseva Lui and Others -v- State Crim. App. 0005/97S, State -v- Ilaisa Sousou Cava Criminal Case No. HAC0007 of 2000S). Aggravating features might be the vulnerability of the victim, injuries, evidence of planning and high value of items stolen. Mitigating factors might be good character, no injuries, pleas of guilty and expressions of remorse or attempts at reparation.

In this case therefore, a sentence of 12 months imprisonment, was considerably lower than the tariff, and I find no error of principle. As to the question of whether a concurrent sentence might have been appropriate, I note that the Appellant is now serving a total of 32 years imprisonment (his expected date of release after remission is August 2003) for a total of 3 separate acts of Robbery with Violence. The offences appear to have been committed within a year of each other, although the Appellant was not convicted for his first offending (in 1999) until 2001. As a general rule, concurrent sentences are appropriate when separate offences are committed arising out of the same transaction or incident. However, where multiple offences come before the court, the sentencer must consider the totality of the behaviour and ask itself what is the appropriate sentence for all his offences. This applies also where a sentence has already been imposed on the offender by another judge or magistrate for another offence, and the court is considering the totality of the terms imposed.

In this case the total term of 32 years imprisonment is not disproportionate to the total offending. I do not consider that the totality principle is offended, and do not think that the learned Magistrate erred in ordering a consecutive sentence.

This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
12^th April 2002